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| ==Law== | | ==Law== |
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| ===United States===
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| *''[http://transgenderlawcenter.org/wp-content/uploads/2014/04/Contesting-Sex-Classification-The-Need-for-Genderqueers-as-a-Cognizable-Class.pdf Contesting Sex Classification: The Need for Genderqueers as a Cognizable Class]'' - [http://members.calbar.ca.gov/fal/Member/Detail/296964 Meerkamper, S.T.], 2013.
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| ::;Summary:
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| <blockquote>A discussion of the need for genderqueer people to be recognised as a distinct, legally protected class, and the possible benefits this could yield for society in general. First-person accounts from genderqueer individuals are used to illustrate what it means to be genderqueer. The paper goes on to outline definitions of 'genderqueer', statistics that highlight unique challenges faced by genderqueer people with regard to discrimination, and arguments that could be used to refute the perceived need for classification based on binary sex.</blockquote>
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| ::;Key Points:
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| ::*Genderqueer identity has largely been ignored by U.S. law; the word 'genderqueer' is often instead used to refer to a political movement to challenge gender roles. Genderqueer people are sometimes included under the wider definition of 'transgender', but this can serve to erase genderqueer identity from consideration.
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| ::*Two definitions of genderqueer should be considered:
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| :::*The [http://en.wikipedia.org/wiki/Practicing_Law_Institute Practicing Law Institute's] existing definition of 'genderqueer' as a “term for people who challenge the binary gender system of femininity/masculinity; often used because of its subversiveness/overtly political/activist aspects; incorporates ideas from gender theory into personal identity.”
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| :::*A definition of 'genderqueer' as a distinct identity: <blockquote>““Genderqueer” refers to those who do not (or do not always) identify as either a woman or a man. Some who consider themselves genderqueer may identify as a man one day and a woman the next. Others identify as neither man nor woman, seeing themselves as between or beyond genders. Some reject gendered pronouns, preferring to be referred to as “they,” or “ze” (a recently created, gender-neutral pronoun) or simply by their name.”</blockquote>
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| ::*Legal protection for genderqueer people would likely make it easier for binary trans* people to seek legal protection, as a system that is already accustomed to removing a gender marker should also have little changing one from 'M' to 'F' or vice versa.
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| ::*Accepting genderqueer people under the law would also be an admittance that gender is fluid and constructed, which may lead to the reduced medicalisation of trans* identities and wider acceptance of less rigid attitudes toward gender.
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| ::*Genderqueer people may face bias in the courts due to their (statistically) younger age, which may contribute to a perception of them being 'confused', 'going through a phase', or threatening the status quo with radical views.
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| ::*90% of genderqueer people surveyed report an experience of verbal harassment in the workplace, barriers to advancement, and pervasive fear of these outcomes.
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| ::*US federal law likely already protects genderqueer people, due to language that focuses on 'gender identity' and 'gender expression', rather than transition.
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| :::*For example, the latest proposed version (at the time of the paper's publication) of the federal [http://en.wikipedia.org/wiki/Employment_Non-Discrimination_Act Employment Non-Discrimination Act (ENDA)] defines gender identity as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”
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| :::*However, employers are often unaware of this, and may discriminate despite the law. This may mean that employers who do discriminate against genderqueer people will take fewer precautions to cover themselves, making it easier for plaintiffs to build a case against them.
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| ::*Most state laws also implicitly include genderqueer people, by protecting “gender-related identity, appearance, expression, or behavior of an individual, regardless of the individual’s assigned sex at birth.”
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| :::*Exceptions:
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| ::::*New Mexico's definition of gender identity as "a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behaviour or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth"
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| ::::*Minnesota's state laws describe being trans* as " “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness”.
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| ::::*Colorado makes the distinction between gender identity (“an innate sense of one’s own gender”) and gender expression (“external appearance, characteristics or behaviors typically associated with a specific gender”). Laws concerning [http://en.wikipedia.org/wiki/Sexual_harassment#Sexual_orientation_discrimination "sexual orientation harassment"] include deliberate misuse of pronouns and names.
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| ::*At the time this paper was published, the latest proposed version of the ENDA defined gender identity as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This further clarifies the inclusion of genderqueers under the law, though it may be unintentional.
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| ::*Arguments for genderqueer inclusion from the standpoint of equal protection:
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| :::*Gender classifications are reviewed under the [http://en.wikipedia.org/wiki/Equal_Protection_Clause Equal Protection Clause] using the [http://en.wikipedia.org/wiki/Intermediate_scrutiny 'intermediate scrutiny'] standard - any act of discrimination based on gender by the state must be justified with benefits to an important state interest.
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| :::*There is precedent to show that laws based on gender stereotypes should not be upheld - see the case of [http://en.wikipedia.org/wiki/Craig_v._Boren Craig v. Boren], in which law would have allowed women to legally buy beer at a younger age than men, as men were caught drunk driving more often. The law was not upheld, as it was felt that differential treatment of the genders played a role in women having fewer opportunities to drive when drunk.
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| :::*There is also precedent that perceived 'inherent differences' between genders are not enough to justify discriminatory law - see the case of [http://en.wikipedia.org/wiki/United_States_v._Virginia United States v. Virginia], in which the Virginia Military Institute banned female students, as they were not considered physically or mentally tough enough to withstand training. The law was not upheld.
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| :::*It could be argued that the idea that there are only 'men' and 'women', and that gender does not differ from sex assigned at birth, is in itself a stereotype and a presumed inherent difference between sexes. Therefore, this idea alone should not be enough to justify a binary sex classification system.
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| :::*Binary sex classification is also arguably irrelevant to important state interests, as sex classification does not affect a person's privileges for travel in the US and often does not relate to their gender expression for the purposes of identification.
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| ::*Arguments from [http://en.wikipedia.org/wiki/Due_process due process]:
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| :::*The [http://en.wikipedia.org/wiki/Due_Process_Clause Due Process Clause] protects “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” There is a precedent for this clause being used to affirm the right to an abortion and undermine ant-gay sodomy laws.
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| :::*Since US family life is still much defined by traditional gender roles, and the right to marry is based on the genders of the partners who wish to marry, gender is clearly linked to these personal decisions. The clause has also been described by the [http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States Supreme Court] as protecting 'the right to define one's own concept of existence', and gender could arguably be included in that concept.
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| :::*Genderqueer people could, therefore, make the case that they should be free to define their own gender without intervention by the state in the form of binary classification.
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| ::*[http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution First Amendement] arguments:
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| :::*The First Amendment prohibits 'state-compelled speech', particularly that which conveys an 'ideological message'. There is a precedent for this being used to justify refusal to display passive, state-issued messages (e.g. citizens removing the New Hampshire state motto, "Live Free or Die", from their license plate, because they disagreed with said motto).
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| :::*To some extent, presenting and/or identifying as genderqueer is an ideological decision, and genderqueer people should not be forced to affirm the idea that gender is binary and tied to sex every time they present documentation.
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| ::'''Published in:''' [http://williamsinstitute.law.ucla.edu/dukeminier-awards-journal/ The Dukeminier Awards Journal]
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| ::'''Access:''' Open Access.
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| ==Policy/Statistics== | | ==Policy/Statistics== |
